When Mark and Janet Sullivan's 11-year marriage collapsed, a victim of the pressures of his demanding medical training, Janet Sullivan visited a lawyer in Southern California to talk about divorce.
Joint assets? the lawyer asked.
Janet Sullivan thought about it: One 1969 dark blue two-door Buick. One 1971 dark green Volkswagen squareback. An old couch. A table bought from a Riverside junkyard. The odds and ends to fill a rented house.
Other assets? the lawyer asked.
"There aren't any," Janet Sullivan said. She had supported them through two years of her husband's medical training, then quit, then stayed home with their infant daughter, then returned to work. They did not own a home, and Dr. Mark Sullivan, the newly trained urologist, had not yet established a practice.
The lawyer, a general practitioner named Patricia Herzog, had heard stories like this before. Even though Mark Sullivan was beginning what promised to be a lucrative career in medicine, Herzog explained, Janet Sullivan could expect no financial settlement for herself from this divorce. She had already demonstrated that she could adequately support both herself and their young daughter. She had one alternative, Herzog said--she could set out to change the law.
That is how Sullivan v. Sullivan turned into a massive stack of legal briefs that now confronts the California Supreme Court. The California court is viewed by many judges and attorneys as the most influential state court in the country, particularly in matters of family law. It is headed by a woman, the celebrated Rose Bird. And the Sullivan case has brought before the justices a matter now troubling trial and appellate court judges in close to half the states of the nation. With women's groups behind her and physicians fiercely opposed, Janet Sullivan is arguing that part of the Sullivans' community property--the marital assets that must now be divided--is the value of Mark Sullivan's medical training.
Not simply the cost--the value. If during the marriage the couple had invested in a painting by a now-famous artist, the argument goes, the painting would be valued at what it is worth today, not the purchase price. How does one arrive at that figure for a professional degree? Janet Sullivan and her attorney have left that to the discretion of the justices, but here is one formula suggested by some who believe Janet Sullivan is right (the figures were compiled by a private Berkeley economist at Herzog's request):
Mark Sullivan's projected lifetime earnings, based on the average income of a United States physician starting practice at age 34 $1,075,871.00
Mark Sullivan's projected lifetime earnings had he not received medical training, based on the average income of a white male college graduate starting work at age 34: $435,547.00
The difference is $640,324. That, by one calculation, is what Dr. Mark Sullivan's professional training is worth.
They meld now into a kind of collective protest, the Sullivan case and its counterparts around the country, from women who bought the traditional social contract as the rules were changing around them. Never mind that the law and the legal briefs are filled with delicate references to the "supporting spouse" and the "professionally trained spouse." Over the five years since these cases began multiplying nationwide, many of them the results of marriages that ended before there was any substantial property to divide, it is women who have come before judges with their voices raised in a cry that never used to carry much legal weight: I've been had.
These are women who did what women used to be expected to do, unless some feverish ego need warned them away: They married men and cooked their suppers and washed their shirts and worked in the kinds of places women without advanced degrees usually work. This is the Washington state veterinarian's wife who took dictation while he trained, and the Iowa lawyer's wife who worked in a bank while he trained, and the dentists' wives and the MBA wives, all waiting for a payoff that never came: no house, no Mercedes, no future as Mrs. Doctor Professional. And when they stood before the trial court judges, the women's movement looming rudely behind them, the judges said: Alimony? Why do you need alimony? You have already supported your whole family. You are a self-sufficient woman. Get out there and be self-sufficient.
California, in its efforts to write gender equality into divorce law, is a case in point. It is one of eight western states where all earned incomes and assets gained during the marriage are declared community property; as a result of the state's precedent-setting 1969 "no fault" divorce law, a trial judge here is generally obligated to split community property 50-50 between a divorcing husband and wife.
When sociologist Lenore Weitzman studied California divorce patterns for a 1981 law review article, she found that the practical effect of this rule was to leave husbands richer and wives poorer; on a chart of post-divorce income in relation to personal need, the men's standard of living rose 42 percent while the women's declined 73 percent.
The trial judges are often right about self-sufficiency. A legal secretary is in most cases a reasonably self-sufficient person; so is a bank teller, and a Civil Service file clerk, and Janet Sullivan, who makes $36,000 a year as a hospital administrator. But Janet Sullivan says she cannot afford to buy a house, and cannot afford to put herself through business school, and that she thought she was working for something more substantial than a divorce decree, a used car and a pronouncement of self-sufficiency.
"Part of the reason you work so hard is precisely that you expect to share in the American tradition to work so hard and have rewards for that effort," she says. "There's no question that Dr. Sullivan experiences the rewards of my efforts. He was the one who had a wife who did all the washing, all the cooking, all the cleaning, so that he could work."
A person of little tact might call this investing in a man. That is hardly a novel concept, but it is only within the past five years that women have found much audience for the startling proposition that courts must help that investment pay off.
"It's a question of fairness," Janet Sullivan says. "There's a serious question of being treated fairly in a marital contract where you both have worked toward a common goal and one person walks away with 100 percent of the rewards of that effort."
"I don't think people marry for business reasons, usually," Mark Sullivan says. "People marry because they're in love, not because they're marrying an heiress. There are occupations where people get together for intercourse with the strict idea of financial compensation, but that's not usually called marriage."
He is soft-spoken, overweight, still dressed in his white doctor's coat at the end of the day. He sits behind the desk in a comfortably cluttered office where the walls are lined with books, mounted butterflies, an Irish flag, an old map of Wyoming, and a framed letter from his daughter in the midst of the diplomas and medical degrees. He says he had known since the age of 7 that medicine would consume his life. "It sounds really corny, but my grandmother died at about that time, and I can remember standing at the cemetery, saying, 'I don't want this to happen again. I want to help people.' "
She is friendly, direct, dressed in the deep-red blouse and good cream-colored skirt of a professional woman just off work. Her title, in the Southern California corporation where she spends her days, is "hospital financial manager."
"Some authority, no glory," Janet Sullivan says with a slight smile. She talks over dinner in a French restaurant 20 minutes' drive from her ex-husband's office; across the table, their 9-year-old daughter, Treisa, asks for help cutting up her steak. Treisa lives half the week with her mother, and the other half with her father and his new wife, in an apparently amicable joint-custody arrangement. She is cheerful and blond, her hair in pigtails tonight, her arithmetic textbook tucked into a corner of the booth.
Janet Sullivan tilts her head toward her daughter, and gives a warning nod. "I felt there was not a lot of value placed in my contribution to the community, if you will--I'm trying to put this in multisyllabic words," she says. "And I resented this . . . It was always obvious that whatever the demands on my time, they were less important than the demands on his time."
She wants it understood that she does not think she deserves half of Mark Sullivan's future earnings, that she has not set a precise dollar amount on the award she hopes to receive. "I obviously didn't contribute 50 percent of the total effort toward Mark getting that M.D.," she says. "I didn't study. I didn't go to the hospital every night." But her contribution was substantial, and it ought to be weighed, she believes. "What is a person's contribution toward a common goal worth?" she asked. "What would $100,000 mean to me?"
The Sullivans are graceful in the public eye. Neither seems confused about what took apart their marriage; the plot is so familiar that prime-time television aired it at least once last year. They met as undergraduates, he spent 10 years in medical training, and she felt ignored. She uses stronger adjectives than that, particularly when Treisa is out of earshot, but that is the essence of it.
Mark Sullivan remembers a staff doctor insisting that he make evening rounds with him, which meant he got home close to midnight, which meant he had missed some planned celebration--birthday or anniversary, he cannot remember which. "She was very unhappy about the time it took to devote to medicine," he says.
The details of who supported whom, and when, are in greater dispute. They agree that while he was in his second and third years of medical school, she worked full time as a university computer programmer and made most of the family money; they also agree that for about two years before and after the birth of their daughter while Mark Sullivan worked as an intern in Oregon, Janet Sullivan did not have a job and that when Treisa was about 1 1/2 she found full-time work again. Mark Sullivan compiled a chart that he says shows he made 68 percent of the family income over the course of their marriage. Janet Sullivan says his chart is skewed to include money, like student loans, that she helped repay, and that she made over half the family money--55 to 60 percent is the figure she calculated.
One other issue lies between them, part of the residue now of ill will. Janet Sullivan says she and Herzog asked early on whether Mark Sullivan would put her through business school, offering to accept that as repayment. "I thought that was fair," Janet Sullivan says. "I thought that if I could have an equal opportunity to not have to work, and to go to school and get my MBA, that that was fair . . . It would mean about 10 grand . . . I was aware that it would not strap him financially. I'm not a vindictive person."
She says Mark Sullivan refused outright. He says no such formal offer was ever made; Morris Sorenson, one of Mark Sullivan's attorneys, says that what his client turned down was a request for spousal support, which used to be called alimony. Sorenson says Janet Sullivan was making more money than Mark Sullivan was at that point, that her work situation allowed her to complete her education on her own, that she had presented no specific evidence of intending to enroll in a particular school and that the law placed Mark Sullivan under no obligation to support his ex-wife.
But that is not the major point, and neither is the family income question. The major point is that Mark Sullivan cannot imagine what claim Janet Sullivan would have on his future, even if she had worked full time the whole 10 years.
In 1978, after they finally moved apart and began divorce proceedings, Mark Sullivan was trying to set up a practice that he says forced him to work 14 months before he even began to make more money than he was spending. He says he watched the doctor upstairs, a medical school classmate, file for bankruptcy and move away.
"The basic fallacy is that the degree itself has value," he says. "I have built my practice, and I make money in my practice, by working an average of 14 hours a day, by trying to be relatively cheerful, by getting up at 3 o'clock in the morning and going into the emergency room to see patients . . . so it's not like it's really a free ticket."
In 1978, when these cases were still an oddity in the legal battleground of divorce settlements, the Colorado Supreme Court heard the case of a woman who claimed her husband's increased earning capacity as marital property, saying she had helped put him through graduate school. The court turned her down, saying education met none of the standard attributes of property--it was personal and not transferable; it could not be acquired by the mere expenditure of money; one could not inherit it or sell it on the open market.
But other courts began to disagree, and they sometimes cited the dissent in that Colorado case: "Equity demands that the courts seek extraordinary remedies to prevent extraordinary justice."
Although divorce procedures vary from state to state, the law had long recognized that tangible assets gained during a marriage--a house, a savings account--ought to be shared after a divorce. Now many courts, often following the lead of the California Supreme Court, were including as marital assets certain intangibles once thought to belong entirely to the husband. His pension, said the courts, was a marital asset. The business or professional practice he established during the marriage was a marital asset, including its "goodwill"--the public presence and familiarity that accounted for some of his income, and that must be assigned a monetary value. The courts even ruled that a man must share with his wife a pension he had not yet worked long enough to receive upon retirement, so that what he was really sharing was expectancy of a pension.
Then, state by state, courts began the debate about advanced education. The debate is still raging. "The law is in a great state of disarray," says Judith Avner, a New York attorney with the National Organization for Women legal defense fund. "There is a case that supports almost any proposition at this point . . . there is no clear rule one way or the other."
Some courts have denied women any recompense at all. Many appellate courts have declared that the wives certainly deserve something for supporting their husbands through school, and have in effect ordered that the wives be paid back--that they receive the equivalent of what they paid for support and tuition, plus interest and adjustment for inflation.
And still others have gone the more extreme route urged by some of Janet Sullivan's supporters: The Michigan Court of Appeals, for example, ruled last June that a woman who helped put her husband through law school was entitled to share the degree's present value--what the lawyer husband was likely to earn, minus what he would probably have earned without the degree. "We fail to see the difference between compensating her for a degree which she helped him earn and compensating her for a house in his name which her earnings helped him buy," wrote the court.
Mark Sullivan's attorneys, who see a very great difference, came up with a mythical character named O.J. Sullivan to illustrate their point. O.J. Sullivan is a gifted athlete who enrolls at the University of Southern California to carry out his lifelong dream, which is to be the world's greatest running back. He marries the day he starts USC and divorces the day he graduates, and when he is snapped up for a multimillion-dollar pro football contract, his ex-wife demands her share.
"You can no more say his athletic attributes are the property of a marriage than you can say his mental abilities are the properties of a marriage," Sorenson says. "People aren't property . . . what you're valuing is something that existed long before the marriage, and that's the person's independent capacity to learn."
"Not true," counters Grace Blumberg, a UCLA law professor who wrote one of the friend-of-the-court briefs on Janet Sullivan's behalf. It makes no difference how studious or brilliant Mark Sullivan might have been before he started medical school, Blumberg says; the point is that Janet Sullivan helped put him through school, and his medical credentials are responsible for what will certainly be a handsome yearly income. "It's very hard for us to realize that so much income turns on having valuable credentials," Blumberg says.
Blumberg's own law degree would arguably be highly valuable community property if she and her husband divorced, since he put her through law school. That is not an entirely uncommon situation today; Mark Sullivan's attorneys like to use the phrase "two-edged sword," and offer as argument the hypothetical example of a woman who marries and divorces twice, adding to her advanced education with each marriage. Does she owe each husband part of her increased earning capacity?
"Certainly there's a possibility that it can be used against women," Avner says. "I think the reality is that it's a very small possibility, given the way things are right now . . . women aren't there yet."
Mark Sullivan's supporters have also wondered about the wisdom of using statistical averages to calculate projected earnings in these cases. "What if the educated spouse wishes to devote his or her efforts to helping the poor at reduced compensation," Sacramento attorney Fred Hiestand wrote in a friend-of-the court brief on behalf of the California Medical Association. "Or suppose the professional degree-holding spouse decides to pursue a career unrelated to this degree? Do the courts wish to preclude this freedom, to place a straitjacket of average enhanced earning capacity upon the degree-holder and thereby confine him to a particular professional career?"
Mark Sullivan says he has in fact thought about changing careers if he loses this case; he supposes that if he were not practicing medicine, his medical degree would be worth nothing. "I really don't know what I'd do," he says. "Do three years of law school, which would be mine, not hers." Or there is always the Veterans Administration, he says. "The VA pays physicians $35,000 a year, but I get to shop at the PX." He smiles. "The hours are very good."
He says his tuition totaled about $5,000 while he was in medical school, and that Janet Sullivan might have legitimate claim to part of that amount. "I don't disagree that perhaps part of the education that she contributed should be returned," he says. "That doesn't seem unfair. But I don't think she's entitled to half my future . . . If I had bought her a stove and taught her how to cook, I would not at the end of the relationship expect to receive all the meals she made . . . I might, at the end of the relationship, expect to receive half the cost of the stove and half the cost of the training."
And Janet Sullivan, who has uneasily hauled her own divorce into a realm inhabited by newspaper reporters and national television audiences, says she is not out for vengeance. "I'm not going after this because 'My husband wronged me and I'm going to get that son of a bitch,' " she says. "It's a matter of fairness. It's not just me anymore. It's these women I've heard from. I got this letter--'I was married for 21 years, put my husband through medical school, worked in his office, had three children . . . and I feel devalued.' " Janet Sullivan rests her chin in her hand. "Devalued. For a person to feel devalued--I don't like that. I don't like it when it happens to me, and I don't like it when it happens to other people."